What do I mean by aggressive litigation?
Well in this context its where a renter attempts to instigate proceedings for restitution and redress but where the landlord employs a practiced solicitor whose preferred tactic is to threaten, cajole, bully and generally intimidate the renter into dropping the case.
The normal premise for this is based on the following:-
· I am a qualified lawyer, better educated and therefore more capable of representing my clients than you.
· Whatever I say is the last word on these matters and you don’t stand a prayer going up against me.
Any non-qualified lawyers working in advice and advocacy are well used to such childish games, that usually start during the first phone call, when you explain who you are and what your role is, only to have them interrupt and ask haughtily “Are you a lawyer?”, in their best Lady Bracknell “A handbag?” tone.
Most recently I even received a mind games email from a solicitor complaining that I had misspelled his name by leaving out one consonant. Never an opportunity lost to put you on the back-foot. Get you apologising before you even start.
Housing advice types take all this school playground nonsense on the chin but the people we try to help are often far less confident, unused as most of them are, to dealing with lawyers and courts, even in routine proceedings.
Let face it, with the prospect of having to reimburse the renter 12 months worth of rent, where RROs in a London HMO case, can easily run to £40,000, we expect landlords to bring in some heavy ammunition, in the form of defence counsel but it’s the morally underhand way they go about protecting their clients that I find objectionable.
As a good but by no means unusual or exceptional example, last year I working on an RRO for a group of housemates in an unlicensed HMO.
Doing an RRO for failure to licence is fairly routine in the evidential stakes, unlike RROs for harassment or illegal eviction, which are far more tricky to do. The property is either licensed or it isn’t and you always have the necessary paperwork to prove the case. Arguments do arise about whether an application was made or whether the landlord new it was an HMO but this is still just part of normal RRO litigation.
The landlord employed a solicitor who, sensing his client was in a legal corner, came out of the traps with an email saying
“We caution that if we are successful, our client will apply for an order requiring the tenant to pay the costs, which are likely to be not less than £5,000 plus VAT.
In an email sent a few days later the landlord’s lawyer wrote further on the matter:-
““We are instructed orally to apply at the hearing for a costs order under rule 13 that your client must pay our client’s costs of the application.”
Our client’s costs presently stand at £3,899 plus VAT and that we anticipate further fees of £2,500 plus VAT will be incurred in relation to the hearing”
Now if you are an ordinary person, you might immediately find your stomach churning at the mention of several thousand pounds worth of costs “Plus VAT”. Such fear might well cause you to back out of the case, even though your case has merit and good evidence.
But what is that passage actually saying there?
Firstly this strident phrase “Must pay our client’s costs”.
“Must pay our client’s costs”? No mention of ‘Possibly’ or ‘Potentially’ or ‘May have to’, . It all sounds very final there but you have to jump back a few words to the phrase “We are instructed to apply”.
You can apply for anything but it doesn’t mean that you will get it
Further, in Rent Repayment Orders, heard in the First Tier Tribunal, costs are rarely awarded anyway, in fact the Upper Tribunal has set quite clear precedents governing the awarding of costs, which are tied to situations where the actions of the landlord or tenant in the case itself were “Unreasonable”.
The key case illustrating this principle is Willow Court Management Ltd v. Alexander (2016), the upshot of which was this:-
“Unreasonable conduct included conduct that was vexatious and designed to harass the other side rather than advance the resolution of the case. It was not enough that the conduct led to an unsuccessful outcome”
The case in which we received that email from the landlord’s solicitors was simply an RRO for failing to licence the property. I doubt that even Hanging Judge Jeffries himself would have concluded that the claimants application was “Unreasonable” in and of itself.
The tribunal in Willow Court also commented “Tribunals ought not to be over-zealous in detecting unreasonable conduct”
So the rules are quite clear and you would really have to seriously go some to have unreasonable costs awarded against you, even if you lose but this doesn’t deter the use of aggressive litigation.
I could forgive lawyers more in this behaviour if they all did it, presuming that this is how the game is played and as a non-lawyer I just come from a different world, if I didnt know several wonderful, high profile housing lawyers who don’t do it all.
People who engage with the case in a normal and measured way and treat all parties with respect, relying on the merits of the case itself and without continually turning litigation into a dick measuring contest.
I can even forgive the behaviour when it’s aimed at me. I’m a big boy, been doing this for years but I really worry for the renters in RRO claims, struck with terror that their attempts to obtain redress might land them in several thousand pounds worth of debt.
Even where some of the tenants are confident enough there is usually one or more of them wanting to back out and this is entirely the point of these communications. You have to work really hard just to hold the claimants together.
The lawyers warning of unreasonable costs orders know as well as we do what the tribunal rules on them are and how unlikely they are to win them but they also know how to word these things to avoid being accused of bullying the claimants and avoid a complaint to the Solicitor’s Regulation Authority.
It’s immoral, its nasty and its unnecessary but those same people will widen their eyes, spread their hands and say “What??? We’re just advising them of the possibilities”.
There should be a tribunal regulation against it, which wouldn’t be needed if people had moral compasses.
By Ben Reeve Lewis
